Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On May 11, 2022, the French Supreme Court issued two long-awaited decisions1 on the statutory scale of indemnification—i.e., the Macron scale—currently applicable in cases of dismissal without cause.
As a reminder, ordinance n° 2017-1387 of September 22, 2017, introduced the Macron scale of indemnification in cases alleging dismissal without real and serious cause (Article L.1235 of French Labor Code). This scale provides minimum and a maximum compensation that can be awarded to plaintiffs in such cases based on months of gross salary, the amount of which depends on the number of the employees within the company and the seniority of the employee.
Since the beginning of its enforcement, the scale has been highly criticized and challenged before the French Labor Tribunals and Courts of Appeal. Many French Labor Courts have opposed this scale, arguing that it is not compliant with European and international standards. Specifically, some courts determined that the application of this scale does not allow them to provide employees with adequate compensation in accordance with Article 10 of Convention No. 158 of the International Labor Organization (ILO)2 and Article 24 of the European Social Charter.3
After many legal disputes and a specific hearing on March 31, 2022, the French Supreme Court held that the Macron scale is valid and that:
- The scale is conventional and is not in conflict with Article 10 of Convention No. 158 of the ILO;
- The judge cannot discard the scale based on the evidence; and
- The European Social Charter has no direct effect in French law.
Going forward, in accordance with these decisions, the tribunals will no longer be able to refuse to apply the legal damages scale.
This decision is obviously good news for employers, since the scale ensures a degree of legal predictability in the event of litigation following a dismissal.
* Ambre Dalbes is an associate with Fromont Briens ǀ Littler.
1 French Supreme Court, May 11, 2022, decisions n° 21-14.490 et 21-15.247.
2 Article 10 of the ILO convention n°158: right for the dismissed employee to a sufficient compensation.
3 Article 24 of the European social Charter: right for the dismissed employee to a sufficient compensation.